ONE OF THE MOST self-serving misconceptions about the Supreme Court was perpetrated by that shrewd old spellbinder, Justice Holmes, who once claimed that "We are very quiet here, but it is the quiet of a storm center." Thus the title of this book. (Actually, Holmes wrote "storm centre," implying a sort of powdered-wig refuge from the storm.) The justices, and the rest of us who center our professional lives on the Supreme Court, tend not to disabuse outsiders of the "storm center" view of the Court. There's excitement in the image of a klatch of high-minded old-timers, living dangerously. But in fact, the Supreme Court is well insulated by life tenure from storm centers, and almost everything else -- and is, most of the time, basically dull.
Dull it may be, but it is also, by any measure, very powerful. And while the Court may refute Henry Kissinger's dictum about power being a great aphrodisiac, the Court's power does make it the focus of a great deal of attention, and writing.
Indeed, when the University of Texas law library brought its index of volumes up to date recently, it found approximately 600 books devoted to the Supreme Court (including biographies of justices), 73 of them published in this decade. The result is that a person who undertakes to author a book about the Supreme Court is in the position of the eighth bridegroom of a famous actress -- who, we are told, knew what he was supposed to do, but wasn't sure he could make it interesting.
David O'Brien has managed to make it interesting to read about the Supreme Court yet again, by focusing on what he calls the "political" role of the Court. There is some titillation in that, because the Court is supposed to be politically sterile, but O'Brien's book (he is a law professor at the University of Virginia) is not really about just politics. It is about the intensely human nature of the institution, and it adds a great deal to the store of knowledge about the personal factors (a few of them political) that have simmered behind the scenes over the years.
In his approach we see the influence of Watergate and the investigative reporting trend. O'Brien is at his best when he is delving into White House documents, investigative records and obscure files to turn up eyebrow-raising gems of dubious judicial behavior.
There is Abe Fortas at a White House war council on Vietnam, warning that "the public would be outraged if we got out." There is a senator calling the White House to learn LBJ's position on pending legislation, and being told, "Well, the President is away, but Mr. Justice Fortas is here and he's managing the bill for the White House." There is Chief Justice Burger, according to John Ehrlichman, sending "a steady stream of notes and letters to Nixon" about proposals for court reform. O'Brien says that more than 70 of the justices, and all of the chief justices in this century, have advised presidents or congressmen. BUT SOME of the most interesting items are those that throw light on the nonpolitical, human side of the justices. There is Chief Justice Vinson, striding around the conference table toward Felix Frankfurter, shouting; "No son-of-a-bitch can ever say that to Fred Vinson." There is Frankfurter, stroking Justice Murphy for his vote and then ridiculing him behind his back. There is anti-Semitic Justice McReynolds, stalking from the conference room when Justice Brandeis speaks, listening at the door until Brandeis finishes, and then returning. And there is Chief Justice Burger, irked that I had broadcast on CBS News a leaked recording of a Supreme Court argument, cutting the National Archives off from further access to the tapes without consulting the other justices.
Beyond the personal foibles of some of the justices, O'Brien attempts to make his case for a "political" Court by means of a gee-whiz view of the institution as it is, but is technically not supposed to be. He illustrates, through the Roe v. Wade abortion decision, how the Court has sometimes stretched its mandate to make policy decisions, and how that has greatly agitated the political waters. He also documents the politics that have often gone into the selection and confirmation of justices, and how the products of the process have occasionally been less than Olympian. There are also some revealing descriptions of how the machinery of the Court grinds, and how bureaucratic it can be.
But the crucial point is that, despite the quirks of some of the justices and the real-life workings of the institution, there is no evidence that any such factors have ever corrupted the decision-making process of the Supreme Court.
In all of those 600 volumes about the Supreme Court -- including this one -- there is not one "smoking gun" to indicate that a justice's vote was affected by personal greed, conflicts of interest, partisan politics or other corrupting influences. The justices' off-the-bench activities have invariably involved meddling with the other branches' business, never the reverse.
That does not mean that decisions are arrived at in the purely analytical method dear to eighth-grade civics books. The justices are human -- and pettiness, prejudice, ideology, small-mindedness and other human factors find their way into the judicial process.
But for all of the tangy disclosures in O'Brien's book, it does not challenge the traditional understanding of how the Supreme Court works. It works in essentially the same boring way we always thought it did -- nine justices doing the best they can to interpret the laws and the Constitution. Dull is beautiful.